Farmers struggle with EPA air quality monitoring program

MEXICO, Mo. -- Hog farmer Bill Kessler calls a voluntary federal program to monitor agricultural air quality "an insurance policy" he hopes will keep his 500-sow operation out of court. For $200, he's essentially buying four years worth of immunity from air pollution penalties.

Southwest Missouri dairy farmer Larry Purdon, though, calls the deal struck by the Environmental Protection Agency and the livestock industry a confusing mess. As the July 29 deadline for participation approaches, Purdon plans to take his chances.

"Most of us don't know what the rules are. Right now, there's very little participation," said Purdon, who milks 100 cows on his Purdy farm near the Arkansas border. "We've got small little operations on the pasture. We don't feel like there's an air emission problem."

EPA officials hoped to enlist thousands of hog, poultry, egg and dairy farmers nationwide when they announced the voluntary monitoring program in January. As of July 20, or little more than a week before the latest deadline -- it's been extended twice -- the number of willing participants stood at 832 businesses, said Bob Kaplan, an attorney in EPA's Washington enforcement office.

When the study and two more years of data review are done, the EPA will start cracking down on livestock production emissions such as ammonia, hydrogen sulfide, volatile organic compounds and dust -- the same factory pollutants the EPA now regulates.

"I don't think there's any cause for concern," he said, referring to the low participation levels. "For some of the sectors, we'll have plenty of representation."

Kaplan said it was too soon to offer a breakdown of participants by industry, number of animals or geography beyond noting that 28 states are represented so far. The consent agreement's success requires a range of participants, from factory farms to contract growers, from which no more than 30 sites will be monitored for ammonia, hydrogen sulfide and other potentially harmful airborne emissions.

The actual number of farms to be monitored exceeds the number of enrolled businesses since some own more than one farm, Kaplan noted. And participation among large farms, which are most at risk for violations of the Clean Air Act and other environmental laws, is higher than among small operators, he said.

"That's really to be expected," he said. "We always knew it would be the larger farms that would benefit from the liability protection."

The one-time civil penalty for concentrated animal feeding operations, or CAFOs, is $1,000 per farm, with a maximum penalty of $100,000. Participants must also pay $2,500 toward monitoring costs -- a sum pork and egg industry groups have agreed to cover for their producers but which dairy, broiler and turkey farmers must pay on their own. Beef cattle, which are raised in open-air feedlots, are exempt.

Even with the promise of four years of legal amnesty -- plus protection from state and federal sanctions for potential violations in the past -- the incentive to participate is difficult to determine, said Morril Harriman, executive vice president of the Poultry Federation of Arkansas, Missouri and Oklahoma.

"The favorable response is not that great," he said. "You are signing an agreement that says, 'I am not violating any air quality laws. Here, I'm going to pay you to see if I'm violating any air quality laws.' It's extremely difficult to explain to people."

Some state regulators echo those concerns.

"If I was a farmer and I read through what EPA offered, I wouldn't participate," said Elmer Roberts, an environmental engineer with the Missouri Department of Natural Resources. "I'm paying to incriminate myself. It's circular logic."

EPA has set a target of 400 to 500 farms per species and likely won't approve consent agreements for producers representing those species if the numbers fall short, according to documents distributed to potential participants in May at the Missouri Pork Association in Columbia.

The low participation rate points to the program's fundamental flaw, say critics. They argue that existing federal laws regulating clean air, hazardous waste and emergency reporting systems already provide EPA the authority to hold agriculture accountable for air emissions.

"The deal may ultimately collapse under its own weight for lack of participation," said Michelle Merkel, a former EPA enforcement attorney who now works for the Washington-based Environmental Integrity Group.

Merkel said she left the agency after she and other EPA lawyers received political pressure to back away from aggressive enforcement of the Clean Air Act against factory farms once President Bush took office in 2001.

Those enforcement efforts included a consent agreement with Premium Standard Farms, the Kansas City-based company with dozens of farms across northern Missouri. The deal required the company to significantly bolster its pollution monitoring efforts, she said.

"Instead of opting to enforce the law, they've been grinding through this amnesty deal," said Merkel.

Kaplan, the EPA attorney, acknowledged that a desire to avoid costly and time-consuming lawsuits is a factor behind a voluntary monitoring effort that's become known in industry circles as "Safe Harbor." A National Academy of Sciences review of livestock air emissions confirmed the need for more definitive data, he said, and most of EPA's enforcement efforts have been aimed at water pollution from farms rather than air.

For Kessler, paying for a voluntary government program is a show of support for the National Pork Producer Council, which has set aside $11 million to cover monitoring costs for its members. He's eager to find out whether his 1,800-acre hog farm is even polluting the air.

"I don't have the sophisticated equipment to measure the exhaust coming out of my pit fence," he said. "We're all starting at square one."